EMPLOYMENT AGREEMENT
Exhibit 10.42
This EMPLOYMENT AGREEMENT (“Agreement”), dated as of 12 February 2007 (the “Effective
Date”), is made by and between AVANIR PHARMACEUTICALS, a California corporation having its
principal offices at 000 Xxxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, 00000 (the
“Company”), and Xxxxxx X. Xxxxxxxx (“Employee”).
AGREEMENT
1. Commencement Date.
Employee’s employment under this Agreement shall commence on 12 February 2007
(“Commencement Date”).
2. At-will Employment.
Employee’s employment relationship with the Company (“Employment”) is at-will,
terminable at any time with or without cause or advance notice by either the Company or Employee.
While certain sections of this Agreement describe events that could occur at a particular time in
the future, nothing in this Agreement shall be construed as a guarantee of employment of any
length.
3. Employment Duties.
(a) Title. Employee shall be Vice President of Finance and Chief Accounting Officer
of the Company and shall be assigned duties and responsibilities consistent with that position at
the discretion of the Company.
(b) Full-Time Attention. Employee shall devote his full time, attention, energy and
skills to the Company during the period he is employed under this Agreement.
(c) Policy Compliance. Employee shall comply with all of the Company’s policies,
practices and procedures, including the terms of the Confidentiality Agreement (defined below).
4. Compensation.
(a) Base Salary. The Company shall pay Employee a base salary of $16,666.67 per month
(an annual rate of $200,000), or such higher amount as the Company may determine from time to time
(“Base Salary”), payable in accordance with the Company’s regular payroll practices.
(b) Bonus Compensation. In addition to the Base Salary, Employee shall be eligible
for an annual discretionary bonus of up to 25% of the Employee’s then-current annual base salary
(pro-rated for fiscal 2007 as described below), with such bonus to be determined and paid in the
first quarter of each fiscal year with respect to Employee and Company performance in the prior
fiscal year. The actual bonus may be higher or lower than the 25% target amount, at the
discretion of the Company. Any bonus payable with regard to performance in fiscal 2007
will be prorated on account of Employee’s commencement of employment less than one year prior
to the payment date. Employee must be employed by the Company when bonuses are distributed in
order to be eligible to receive such bonus. If Employee leaves the employ of the Company for any
reason prior to the distribution of annual bonuses in any given year, he will not be eligible to
receive any part of that year’s discretionary bonus.
(c) Equity Compensation. The Company has recommend to its Board of Directors that
Employee be granted the following equity awards as additional compensation and such awards have
been approved, pending the commencement of employment:
(i) Subject to the commencement of employment, Employee shall be granted a restricted stock
unit on the Commencement Date representing 10,000 shares of Class A common stock (the
“RSU’s”). The RSU’s shall vest in full upon Employee’s completion of two full years of
employment (the “Vesting Date”). The RSU’s will be granted pursuant to the Company’s
equity compensation plans (the “Equity Plans”) and will be governed by the terms and
conditions of such plans. Except as set forth in Section 10(d)(ii), the RSU’s shall be forfeited
if the Employment is terminated prior to the Vesting Date.
(ii) Subject to the commencement of employment, Employee shall be granted an option on the
Commencement Date to purchase 20,000 shares of Class A common stock, with an exercise price equal
to 100% of the fair market value of the underlying shares on the date of grant, subject to a
four-year vesting schedule (25% vesting on the first anniversary of the Commencement Date and the
remainder vesting in 12 equal installments each quarter thereafter over the next three years).
This option shall be granted as an “inducement option” under NASDAQ Marketplace Rule 4350 and shall
be granted outside of the Equity Plans, but shall be governed in all material respects as if it was
granted under the Company’s 2005 Equity Incentive Plan, mutatis mutandis. This option will be
treated for tax purposes as a non-statutory stock option.
The foregoing share amounts and share purchase prices shall be adjusted, as necessary, to give
effect to any stock split, reverse stock split, stock dividend, recapitalization or similar
transaction affecting the Company’s Class A common stock that is effected after the Effective Date.
(d) Employee Benefits. Employee shall be entitled to participate in all employee
benefit plans, programs and arrangements maintained by the Company and made available to employees
generally. The Employee’s participation in such Company plans or programs shall be on the same
basis and terms as are applicable to other executive employees of the Company. Employee shall
accrue 5 weeks of vacation the first year of service.
(e) Reimbursement of Expenses. During his employment with the Company, Employee shall
be entitled to reimbursement for all reasonable and necessary business expenses incurred on behalf
of the Company, in accordance with the Company’s policies and procedures.
5. Confidentiality Agreement. Employee shall concurrently herewith execute and
deliver to the Company the Employee Invention Assignment, Patent and Confidential Information
Agreement (“Confidentiality Agreement”) in the form attached hereto as Exhibit B.
6. Non-Competition. During his Employment, Employee shall not, directly or
indirectly, either as an employee, employer, consultant, corporate officer or director, investor,
or in any other capacity, engage or participate in any business that is a Competitor of the
Company, unless such participation or interest is fully disclosed to the Company and approved by
the Board. “Competitor,” as used in this paragraph, refers to any company that has therapeutic
products (i) on the market or in clinical development and (ii) that are in competition with the
products the Company has on the market or that have entered clinical development. Notwithstanding
the above, Employee may own securities in any Competitor that is a public company, so long as
Employee does not own, of record or beneficially, more than an aggregate of five percent of the
outstanding securities of such company.
7. Non-Solicitation. During his Employment, and for a period of 12 months thereafter,
whether for Employee’s own account or the account of any other person, Employee shall not solicit,
directly or indirectly, any employee to leave his or her employment with the Company. For purposes
of this Agreement, the phrase, “shall not solicit, directly or indirectly,” includes, without
limitation, that Employee shall not: (i) identify any Company employees to any third party as
potential candidates for employment, such as by disclosing the names, backgrounds, compensation or
qualifications of any Company employees; (ii) personally or through any other person approach,
recruit or otherwise solicit employees of Company to work for any other employer; or (iii)
participate in any pre-employment interview with any person who was employed by the Company while
Employee was employed by the Company whether under this Agreement or otherwise.
8. Agreement with Previous Employers. Employee represents and warrants to the Company
that he does not have any agreement with any previous employer that prevents him from performing
his duties and responsibilities under this Agreement or that in any way limits his performance
hereunder. Employee understands and acknowledges that his employment with the Company is
contingent upon his compliance with any and all agreements between him and his prior employers.
9. Change of Control. Upon commencement of employment, Employee shall be eligible to
enter into the Company’s standard Change of Control Agreement for executive officers (the “Change
of Control Agreement”) in the form attached hereto as Exhibit A.
10. Voluntary Resignation or Termination for “Cause.”
(a) Payment upon Voluntary Resignation or Termination for Cause. If Employee
voluntarily resigns his Employment, and such resignation is not a “Resignation for Good Reason” (as
defined in the Change of Control Agreement), or if Employee is terminated for Cause (defined
below), the Company shall pay Employee all accrued and unpaid Base Salary through the date of
termination and any vacation that is accrued but unused as of such date. Employee shall not be
eligible for Severance Payments, as defined below, or any continuation of benefits (other than
those provided for under the Federal Consolidated Omnibus Budget Reconciliation Act
(“COBRA”)), or any other compensation pursuant to this Agreement or otherwise.
(b) Definition of “Cause.” As set forth above, the Employment relationship between
the parties is at-will, terminable at any time by either party for any reason or no reason. The
termination may nonetheless be for “Cause.” For purposes of this Agreement,
“Cause” means:
(i) Employee’s material breach of this Agreement or any confidentiality agreement between the
Company and Employee; or
(ii) Employee’s willful and intentional failure or refusal to comply with the Company’s
Employee Manual, the Company’s Code of Business Conduct and Ethics, or other policies or procedures
established by the Company; or
(iii) Employee’s willful and intentional appropriation (or attempted appropriation) of a
material business opportunity of the Company, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the Company; or
(iv) Employee’s misappropriation (or attempted misappropriation) of any of the Company’s funds
or material property; or
(v) Employee’s conviction of, or the entering of a guilty plea or plea of no contest with
respect to, a felony, the equivalent thereof, or any other crime with respect to which imprisonment
is a possible punishment; or
(vi) Employee’s willful and intentional misconduct or incompetence; or
(vii) Employee’s becoming “disabled,” (defined in Section 409A(a)(2)(C) of the Code),
resulting in his inability to perform the essential functions of his position, with reasonable
accommodation; or
(viii) Employee’s death.
(c) In each case, “Cause” shall be determined conclusively by the Board, acting in good faith.
Notwithstanding the foregoing, no event described in Section 10(b)(i), (ii), (iii) and (vi) above
will give rise to “Cause” unless it is communicated by the Company to Employee in writing and
unless it is not corrected by the Employee in a manner that is reasonable satisfactory to Company
within 30 days of the Employee’s receipt of such written notice.
(d) Termination Without Cause or Resignation for Good Reason. Subject to Section 9,
if Employee: (i) is terminated without “Cause,” or (ii) resigns in a “Resignation for Good Reason,”
(as defined in the Change of Control Agreement), then Employee shall be paid all accrued and unpaid
Base Salary and any accrued but unused vacation through the date of termination. In addition, in
exchange for Employee’s execution of a release of all claims against the Company and its
subsidiaries and affiliates effective as of the date of termination and in substantially the form
attached to the Change of Control Agreement, and if Employee is not then entitled to severance
benefits under the Change of Control Agreement in connection with such termination or resignation,
then
(i) Employee shall be eligible to receive severance payments under this Agreement in an amount
equal to six months Base Salary and an amount equal to the greater of (x) 12.5% of Base Salary or
(y) 50% of the last bonus, if any, paid to Employee pursuant to Section 4 (the “Severance
Payments”), payable on the earliest of (A) the date that is six months and a day after
Employee’s “separation from service” for any reason, other than death or becoming “disabled” (as
such terms are used in Section 409A(a)(2) of the Code), (B) the date of Employee’s death or on
which Employee becomes “disabled” (as such term is used in Section 409A(a)(2)(C) of the Code), (C)
the effective date of a “change in the ownership or effective control” of the Company (as such term
is used in Section 409A(a)(2)(A)(v) of the Code) or (D) the date such payments or benefits are no
longer deemed by the Code to be subject to penalty tax or interest. The payment timing provisions
of this paragraph shall only apply to the extent required to avoid Employee’s incurrence of any
penalty tax or interest under Section 409A of the Code or any regulations or Treasury guidance
promulgated thereunder. In addition, if any provision of this Agreement would cause Employee to
incur any penalty tax or interest under Section 409A of the Code or any regulations or Treasury
guidance promulgated thereunder, the Company shall, upon the written request of Employee, reform
such provision to maintain, to the maximum extent practicable, the original intent of the
applicable provision without violating the provisions of Section 409A of the Code and without
creating additional cost for the Company; and
(ii) The vesting of the RSU’s shall accelerate and the RSU’s shall become fully vested.
11. Dispute Resolution Procedures. Except as expressly provided in this Agreement,
Employee agrees that any dispute or controversy arising out of, relating to, or in connection with
this Agreement, or the interpretation, validity, construction, performance, breach, or termination
thereof shall be settled by arbitration, to the extent permitted by law, to be held in Orange
County, California in accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association (the “Rules”) and in accordance with
the accompanying Mutual Arbitration Agreement attached hereto as Exhibit C. The
arbitrator’s decision shall be final, conclusive and binding on the parties to the arbitration
pursuant to the Mutual Arbitration Agreement. Judgment may be entered on the decision of the
arbitrator in any court having competent jurisdiction.
12. Notices. Any reports, notices or other communications required or permitted to be
given by either party hereto, shall be given in writing by personal delivery, overnight courier
service, or by registered or certified mail, postage prepaid, return receipt requested, addressed
to each respective party at the address shown below or other current address:
If to AVANIR:
Avanir Pharmaceuticals
000 Xxxxxxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Vice President Human Resources
000 Xxxxxxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Vice President Human Resources
If to Employee:
Xxxxxx X. Xxxxxxxx
0 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxx, XX 00000
0 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxx, XX 00000
13. Withholding. All payments, including Base Salary, bonus and Severance Payments,
shall be paid less applicable Federal and state withholding taxes. In the case of the rights
referred to in Section 4(c) (Equity Compensation) above, Employee shall be responsible for
furnishing the Company with the amount of any required withholding at the time it is due, and the
Company’s obligations with respect to such rights shall be conditioned upon Employee’s compliance
with this Section 13.
14. General Provisions.
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
(b) Assignment. Employee may not assign, pledge or encumber her interest in this
Agreement or any part thereof.
(c) No Waiver of Breach. The failure to enforce any provision of this Agreement shall
not be construed as a waiver of any such provision, nor prevent a party thereafter from enforcing
the provision or any other provision of this Agreement. The rights granted the parties are
cumulative, and the election of one shall not constitute a waiver of such party’s right to assert
all other legal and equitable remedies available under the circumstances.
(d) Severability. The provisions of this Agreement are severable, and if any
provision shall be held to be invalid or otherwise unenforceable, in whole or in part, the
remainder of the provisions, or enforceable parts of this Agreement, shall not be affected.
(e) Entire Agreement. This Agreement and the exhibits hereto constitute the entire
agreement of the parties with respect to the subject matter of this Agreement and supersedes all
prior and contemporaneous negotiations, agreements and understandings between the parties, whether
oral or written.
(f) Modifications and Waivers. No modification or waiver of this Agreement shall be
valid unless in writing, signed by the party against whom such modification or waiver is sought to
be enforced.
(g) Amendment. This Agreement may be amended or supplemented only by a writing signed
by both of the parties hereto.
(h) Duplicate Counterparts. This Agreement may be executed in duplicate counterparts,
each of which shall be deemed an original; provided, however, such counterparts shall together
constitute only one agreement.
(i) Interpretation. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(j) Drafting Ambiguities. Each party to this Agreement and its counsel have reviewed
and revised this Agreement. The rule of construction that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or any of
the amendments to this Agreement.
* * *
EXECUTED at Aliso Viejo, California, this 12th day of February, 2007.
| AVANIR PHARMACEUTICALS |
||||
| Dated: February 12, 2007 | By: | /s/ Xxxx X. Xxxxxx | ||
| Xxxx X. Xxxxxx | ||||
| Chief Executive Officer | ||||
| EMPLOYEE |
||||
| Dated: February 12, 2007 | /s/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
